The Ninth Circuit Court of Appeals ruling on the Trump immigration order (the “Trump Order“) is flawed on several levels. The court’s analysis is shockingly poor and disturbing for a variety of reasons. We do not reach this conclusion because we agree with the Trump Order, for we take no position on it. Rather, the court’s ruling would set dangerous precedents, particularly regarding a president’s power to act quickly to protect the country. At the least, the key parts of the ruling addressing (or failing to address) constitutional issues for non-resident aliens will likely not survive the Supreme Court. But the court’s ruling makes clear at least one thing. The Trump Order was poorly drafted. President Trump will likely soon follow with a new immigration executive order, if he truly believes national security requires it.
We briefly look at the what and why of a new order. Then we provide a detailed review of the numerous flaws in the Ninth Circuit’s analysis.
The President Should, and We Expect Will, Issue a New Immigration Executive Order
President Trump should not wait for this case to work its way to the Supreme Court. This could require weeks or more. The Trump Order is loose enough that the outcome is in doubt. Rather, he should simply issue a new order, more narrowly crafted to eliminate areas of arguable unconstitutionality. A new immigration executive order should focus on what the White House claims was its original intent. This means a new immigration executive order that prevents nonresident aliens from the seven identified nations from making their first entry into the United States. These nonresident aliens have no constitutional rights and their entry can easily by barred on clearly articulated national security grounds.
We have little doubt that President Trump will ultimately prevail. All it takes is a more narrowly drawn new immigration executive order. A new immigration executive order is the best approach to follow if the President is truly concerned that a legitimate national security issue exists. If the President perceives a risk, he should act expeditiously. He should not wait for the current Trump Order to work its way to and through the Supreme Court. He should issue a new immigration executive order as soon as possible.
We address below the various constitutional issues considered by the Ninth Circuit. Aspects of the Ninth Circuit’s decision dealing with legal standing, the First Amendment Establishment Clause, due process claims, and more may not survive a Supreme Court review.
The Ninth Circuit’s Decision – Resident Aliens’ Fifth Amendment Due Process Rights
The fundamental flaw in the Trump Order is its application to lawful resident aliens (green card holders). Indeed, the Ninth Circuit’s ruling focused on alleged harms to lawful resident aliens. The Ninth Circuit held that the government could not prevent the return of lawful resident aliens who temporarily left the United States. Rather, it ruled that such resident aliens have constitutional due process rights to challenge their subsequent exclusion from the U.S. The distinction here is simply this. Nonresident aliens do not have constitutional rights. Resident aliens, by virtue of their presence in the United States, have due process rights under the Fifth Amendment.
Why do lawful resident aliens have Fifth Amendment rights? Because the language in the Fifth Amendment states that its’ protections apply to the broader class of “persons.” These protections are not limited to “citizens.” A “person” is anyone physically present in the United States.
The Trump Order articulates legitimate national security concerns regarding nonresident aliens who had never been present in the United States. More recently, the government realized that the Trump Order was too broad because it covers resident aliens, as described above. The government claimed in the Ninth Circuit that the Trump Order was not intended to cover resident aliens. It further claimed that the Trump Order would not be applied against resident aliens. However, the government had not formalized its representation in a revised executive order. As a result, the Ninth Circuit was not satisfied that this change was enforceable. It therefore ruled that the Trump Order, as written, would likely not survive constitutional challenges from resident aliens.
A New Immigration Executive Order Will Obviate Resident Aliens’ Fifth Amendment Claims
Of course, this is an easy fix for the President. A new immigration executive order (the “New Order“) should simply differentiate between lawful resident aliens and nonresident aliens. The New Order should make clear that it does not cover lawful resident aliens. This new immigration executive order should include a specific process allowing the return of lawful resident aliens. It should also accommodate other pre-existing immigration requirements.
The Ninth Circuit’s “Standing” Analysis and the Significant Errors in its Ruling
The Ninth Circuit concluded that the States of Washington and Minnesota have legal standing under Article III of the Constitution to challenge the Trump Order.
Basics of Legal Standing
“Standing” to bring a claim in federal court generally means that the claimant must have a personal stake in the matter; the issue must affect the claimant directly. Here, the two states claimed to represent their respective state universities that are allegedly affected when faculty and/or students from the seven countries are subject to the travel suspension.
The Ninth Circuit’s Standing Analysis
The court found standing on the following basis:
[T]he States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will note enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave.
Errors in the Court’s Standing Analysis
The problem with the Ninth Circuit’s ruling is that it allows claims with respect to parts of the Trump Order where the States clearly lack an interest. For example, there is no effect on the state universities from the indefinite ban on Syrian refugees under Section 5(c) of the Trump Order. Similarly, they have no justiciable interest with respect to potential refugees claiming religious-minority status under the Trump Order. Further, the court allowed the States to act on behalf of all immigrants, as a class, by simply referring to alleged losses incurred by state institutions. And this is so even if the alleged loss is merely temporary.
There are important errors by the Ninth Circuit. The court sustained the temporary restraining order with respect to the entire Trump Order. The court’s action includes these and other provisions with respect to which the claimants have no personal stake. This is no small mistake. As a consequence, the Ninth Circuit has prevented the President from an action protecting national security on the basis of alleged claims that the law will not recognize. Importantly, the court ignored its duty, under Supreme Court precedent, to determine whether the claimants have standing to challenge each of the government actions set forth in the Trump Order.1 To the extent that they lack standing on a particular aspect of the Trump Order, the court must not take any action with respect to that part of the Trump Order.
One last note on the standing ruling. The Ninth Circuit also stated that the two states had standing, under the First Amendment’s Establishment Clause, to challenge alleged religious discrimination. The argument that somehow the First Amendment limits federal immigration law is unique. The court did not cite any authority to support its conclusion.
The Ninth Circuit’s Analysis of Nonresident Aliens’ Due Process Rights
The Trump Order covers two general classes of aliens: nonresident aliens and lawful permanent aliens. The Ninth Circuit’s analysis failed to adequately address the different rights (or lack thereof) of these two classes.
Lawful Permanent Aliens
The Ninth Circuit was on its best footing in the context of due process rights for lawful permanent aliens. Given the procedural posture of the case, the government had the burden to prove to the Ninth Circuit that it was likely to win the case. The court ruled that the government failed to meet that burden. It effectively ruled that the Trump Order failed to provide adequate due process protections to lawful permanent residents and non-immigrant visaholders. The Trump Order bars such persons from re-entering the U.S. The Fifth Amendment due process issue for such lawful permanent aliens is described above.
Nonresident Aliens With, and Without, Entry Visas
But the Ninth Circuit overlooked that the lower court injunction applied to aliens who did not have visas. This is a critical failure. The constitutional analysis is entirely different for nonresident aliens, and especially for those foreign nationals who have not yet entered the United States. This is the group of aliens that the Trump administration stated they targeted, and now intend for the Trump Order to capture. For this class of persons, the Ninth Circuit’s analysis misses the point:
Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert [various citations omitted].
Amazingly, the court prohibits even a temporary suspension of rights of entry from the seven countries identified by Congress and covered by the Trump Order because of “potential claims” by illegal aliens. The court recognized due process rights of persons who are not yet immigrants. None of the authorities the court cited (which we omitted) are directly on point. In fact, the Ninth Circuit provided no direct analysis of alleged claims by the nonresident aliens allegedly targeted by the Trump Order.
The Ninth Circuit Failed to “Save” The Parts of the Trump Order That Clearly are Not Deficient
The Supreme Court has not yet determined whether a nonresident alien denied a visa has any due process right to challenge that denial.2 There are strong arguments that such nonresident aliens lack such a right. The Ninth Circuit failed to analyze the issue. The court cited Zadvydas v. Davis to support its due process conclusion.3 However, that case did not address whether a nonresident alien has due process rights to challenge denial of entry into the United States. The court copped-out, and stated that if the Trump Order was too broad, they would not try to rewrite it. Of course, courts have on other occasions “rewritten” laws to preserve portions that are supportable.
Again, a new immigration executive order, properly crafted, will easily survive such due process claims in the context of a Presidential claim of national security.
First Amendment Establishment Claims and Fifth Amendment Equal Protection Claims
The Ninth Circuit effectively found that there was enough evidence to show that the Trump Order’s intent was to disfavor Muslims. It cited statements by President Trump regarding a potential Muslim ban. It also cited evidence suggesting that the Trump Order contemplated just such a ban. On this basis the court held:
It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection claims [cited cases and descriptions are omitted]. . . The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed.
The court was clearly implying that President Trump’s campaign statements regarding Muslims render the Trump Order invalid. The court’s analysis here is shocking and, indeed, a dangerous encroachment upon the President’s national security obligations.
The Ninth Circuit’s Analysis Implications for National Security Matters
A President’s national security decisions receive considerable deference from the courts. Court’s have been very reluctant to intercede in these situations for a variety of rather obvious reasons. Courts must not refuse to defer because of comments made by a candidate during a presidential campaign. The Ninth Circuit acted as if the Trump Order was a Muslim ban. But the Trump Order is, de facto, not a Muslim ban.
The court’s conclusion is pregnant with a grievous implication for any president, and for that reason alone is incorrect. Consider the situation where the executive branch determines there are legitimate national security concerns from the seven countries. Perhaps the President receives information that a terrorist from Syria intends to come to the U.S. to launch an attack. The Syrian population is almost 97% Muslin. There is also unequivocal evidence that the President wants to ban Muslims and is, in effect, a bigot. The Ninth Circuit’s logic is that potential Establishment Clause claims of nonresident Syrians prevail. The court accordingly prohibits action by the president protecting the country from a possible attack. That outcome simply cannot be correct, on any level. And we suggest the Supreme Court will not allow such an outcome.
The court made another, incredible, comment supporting its view that the government failed to prove it would prevail on the merits.
The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.
Nor, we add, must the government provide such evidence. The President cannot protect the country under this truly bizarre rationale. This would be true even if he knew that a nonresident alien was intending to enter the U.S. and launch an attack it. The President could not deny entry to that foreign national by executive order. The Ninth Circuit says, “Mr. President you must wait. You can only act after a foreign national from one of these countries has already entered and attacked. Then, you can stop a subsequent attack from a second such foreign national.” This is precisely why courts owe great deference to the president on national security matters. Courts cannot react quickly to evidence on the ground. They dare not tread here. Constitutionally, they cannot tread here.
Runaround the Ninth Circuit – Issue a New Immigration Executive Order
The Ninth Circuit’s decision is erroneous on so many grounds. Nevertheless, we expect no review by the Supreme Court. President Trump should simply issue a new immigration executive order, rifled at the specific concerns he has raised. A new immigration executive order, so crafted, will be constitutionally firm.
